PEOPLE v. KEFURT (1980)

The primary issue presented by this petition for writ of mandate taken by the People under Penal Code section 1538.5, subdivisions (j) and (o), is whether the trial court properly gave retroactive application to Mincey v. Arizona (1978) 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290, which held the “murder scene exception” to the warrant requirement to be inconsistent with the Fourth and Fourteenth Amendments and an insufficient justification for a warrantless search. In so doing, the trial court suppressed certain items of evidence seized during a warrantless search on August 21, 1977, of the residence of the defendant and real party in interest.

At the time of the search in question, it was not necessary for California law enforcement officers to secure a warrant before searching the scene of a homicide, since the “murder scene exception” was recognized by California case law. (People v. Wallace (1973) 31 Cal.App.3d 865, 870-871, 107 Cal.Rptr. 659; People v. Superior Court (Henry) (1974) 41 Cal.App.3d 636, 640-641, 116 Cal.Rptr. 24.)

FACTS

The defendant was charged with the premeditated double murder of his parents at the family residence on August 21, 1977, within the scope of section 190.2, subdivision (a), paragraph (3), of the Penal Code and by use of a deadly weapon, a knife, in each of the killings in violation of section 12022, subdivision (b), of the Penal Code.

Defendant's Penal Code section 1538.5 motion to suppress was heard in superior court on January 8, 1980. The facts adduced were that a deputy sheriff was summoned by police radio to the residence of the defendant's family in the early morning hours of August 21, 1977. The deputy was met at the front door by the defendant who “directed” him to the master bedroom where the killings had occurred earlier that morning. After viewing the bloody scene, the deputy summoned a homicide investigation team. When the other deputies arrived they knew that the defendant was in custody in a police vehicle and was suspected of having committed the homicides. The deputies then entered the residence to investigate the homicides without obtaining a search warrant because they believed it was unnecessary under the circumstances. In the hallway leading to the master bedroom, they found a knife lying on the floor with blood on it. Continuing into the master bedroom, they observed two victims, one female and one male.

After examining the master bedroom, the deputies travelled throughout the residence in search of blood and items covered with blood potentially informative as to the homicidal character of the killings or the identity of the killer. By this time the premises had been secured by deputies against destruction of evidence.

During the eight-hour search the deputies entered the defendant's bedroom located to the rear of the residence, where they observed a knife sharpener on the floor, a bloodied T-shirt, and a pair of jeans. Inside the pants pocket was discovered a wallet, which in turn contained $94 cash, a Ralphs Grocery Market receipt slip for $7.42, and defendant's driver's license. The wallet and its contents, neither of which was discovered in plain view, were then seized “to safeguard the money and to assist in identifying the victims and the defendant.” Also observed and seized in the defendant's bedroom that day were a paper bag and a roll of paper towels, which appeared to the deputies to have been cut and slashed several times with a sharp instrument. The investigation was videotaped.

On August 25, 1977, deputies returned to the residence to seize additional items, among which was the knife sharpener observed on the 21st.

TRIAL COURT'S RULING

The trial court found that the invitation to enter the premises for the purpose of investigating the homicides extended to the law enforcement agency as such, and not to just the first officer who arrived at the scene. It also found that the invitation included entry through the front room, hallway, and the master bedroom, and anything in this area that was in plain view was admissible, as well as any still photographs or videotapes thereof. This included blood-stains whether on top of, around, or under the bodies of the victims.

The court also ruled that the invitation did not include the search of the defendant's bedroom and, since no warrant was obtained by the deputies, the search was invalid under Mincey. Thus, the court ruled inadmissible the items seized from defendant's bedroom on August 21, 1977, including the bloodied T-shirt, the jeans, the wallet and contents, the paper bag, the roll of paper towels, as well as any testimony concerning the observation of the knife sharpener.

All items seized on August 25, 1977, including the knife sharpener, were suppressed, but petitioner does not contend that this part of the order is erroneous.

The court clearly stated that it was not basing its ruling upon the collateral estoppel contention advanced by the defendant as an alternative ground in support of his motion to suppress evidence.

RETROACTIVITY OF MINCEY v. ARIZONA

In determining whether the Mincey decision should be given retroactive or prospective application, we begin with the three criteria used by federal and California courts:

“(a) [T]he purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” (Stovall v. Denno (1967) 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199; People v. Hitch (1974) 12 Cal.3d 641, 654, 117 Cal.Rptr. 9, 527 P.2d 361.)

Foremost among these is the purpose to be served by the new rule. (Desist v. United States (1969) 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248.) The other two factors are relied upon heavily only when the purpose of the rule does not clearly favor either retroactivity or prospectivity. (Desist v. United States, supra, at p. 251, 89 S.Ct. at p. 1034; In re Johnson (1970) 3 Cal.3d 404, 410, 90 Cal.Rptr. 569, 475 P.2d 841.)

Where retroactive application of a new constitutional standard is necessary to insure the “reliability of the fact-finding process at trial” to avoid convicting an innocent person, such as guaranteeing counsel at trial (Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799), or the right to confront and cross-examine witnesses giving incriminating pretrial statements (Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476), the purpose of the “new” standard indicates such application. On the other hand, decisions which have been denied retroactive effect are seen as vindicating interests which are collateral to or relatively far removed from the reliability of the fact-finding process at trial. (In re Johnson, supra, 3 Cal.3d at pp. 412-413, 90 Cal.Rptr. 569, 475 P.2d 841.)

Evidentiary exclusionary rules fall in the latter category. For example, in Linkletter v. Walker (1965) 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, the court refused to apply retroactively Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, which extended to the states the exclusionary rule against illegal evidence and stated: “[A]ll of the cases … requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action․ We cannot say that this purpose would be advanced by making the rule retrospective. The misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved.” (Linkletter v. Walker, supra, 381 U.S. at pp. 636-637, 85 S.Ct. at p. 1741.)

In Desist v. United States, supra, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, the court, in applying prospectively the “new” exclusionary rule prohibiting the use of evidence obtained by warrantless electronic eavesdropping (Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576), stated:

“Both the deterrent purpose of the exclusionary rule and the reliance of law enforcement officers focus upon the time of the search, not any subsequent point in the prosecution, as the relevant date. Exclusion of electronic eavesdropping evidence seized before Katz would increase the burden on the administration of justice, would overturn convictions based on fair reliance upon pre-Katz decisions, and would not serve to deter similar searches and seizures in the future.” (Desist v. United States, supra, 394 U.S. at p. 253, 89 S.Ct. at p. 1036.)

In United States v. Peltier (1975) 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374, the court again refused to give retroactive effect to a new exclusionary rule announced in Almeida-Sanchez v. United States (1973) 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, wherein the court held unlawful a search by Border Patrol agents of a vehicle 25 miles from the border without probable cause or a warrant. In so doing the court reviewed earlier cases concerning retroactivity of new exclusionary rules and stated:

“The teaching of these retroactivity cases is that if the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the ‘imperative of judicial integrity’ is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that manner.” (United States v. Peltier, supra, 422 U.S. at p. 537, 95 S.Ct. at p. 2317.)

California cases have also refused to apply retroactively “new” exclusionary rules.¹ For example, the court in In re Lopez (1965) 62 Cal.2d 368, 42 Cal.Rptr. 188, 398 P.2d 380, refused to apply retroactively a new rule excluding certain incriminating statements (Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361), since the purpose of the rule was to provide a suspect with an opportunity to obtain protection of counsel at the accusatory stage in order to eliminate conditions which invited coerced confessions, and hence the rule did not require retroactive application.

Similarly, the court in People v. Kaanehe (1977) 19 Cal.3d 1, 136 Cal.Rptr. 409, 559 P.2d 1028, refused to apply retroactively Burrows v. Superior Court (1974) 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590, which held that a bank's voluntary surrender of a depositor's bank records without the aid of any legal process constituted an illegal search and seizure. The court stated that the purpose of the new exclusionary rule was to deter illegal conduct by law enforcement officials and that this purpose would not be served by applying the rule retroactively. Accordingly, the court upheld the trial court's refusal to suppress bank records which were seized 25 days before the Burrows decision.

We are of the opinion that the Mincey decision of the United States Supreme Court was announcing a “new” exclusionary rule of evidence, applicable to California, Arizona, and those states which had been living under the “murder scene exception” over a period of years.²

We are also of the opinion that the purpose of “new” exclusionary rules as enunciated by numerous state and federal cases is to deter law enforcement officers from obtaining evidence illegally. This purpose is not served by applying the new rules retroactively to searches made in the past by law enforcement officers who were complying with the law as it existed at the time of the search.

We hold that the trial court erred in applying Mincey retroactively, and should not have suppressed the evidence found in defendant's bedroom.

APPLICABILITY OF CLOSED CONTAINER CASES

Defendant contends that even if Mincey is not applied retroactively, the wallet and contents should be suppressed under the “closed container” cases (United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538; People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514; People v. Dalton (1979) 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467).

In each of the above cases the court held illegal a warrantless search of a closed container (a footlocker in Chadwick, a tote bag in Minjares, and a locked metal box in Dalton) which was in the exclusive control of the police and which had been lawfully seized from the trunk of an automobile.

In Chadwick, the government attempted to justify the warrantless search of the footlocker by analogy to the “automobile exception” to the warrant requirement. (Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; cf. Chambers v. Maroney (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.) The Supreme Court noted that the “automobile exception” was based on (1) an automobile's “inherent mobility, which often makes obtaining a judicial warrant impracticable” (United States v. Chadwick, supra, 433 U.S. at p. 12, 97 S.Ct. at p. 2484), and (2) “the diminished expectation of privacy which surrounds the automobile.” (Ibid.) The court, therefore, rejected the government's analogy, finding differences of constitutional dimension between the warrantless search of luggage and of automobiles. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects, providing a greater expectation of privacy.

In the present case we deal not with the “automobile exception,” but with the “murder scene exception,” and hence must consider the different reasons for the two exceptions. The “automobile exception” is based upon the mobility of the automobile and the diminished expectation of privacy. On the other hand, the “murder scene exception” is based upon the need to “conduct a prompt and diligent investigation to ascertain the cause of the victim's death.” (People v. Wallace, supra, 31 Cal.App.3d at p. 871, 107 Cal.Rptr. at p. 662.)

It is apparent that the expectation of privacy was never a consideration in the “murder scene exception,” for most of the searches in the reported cases occurred in the homes of the victims or of the potential suspects.

Moreover, the searches have been extensive and thorough. For example, in People v. Wallace, supra, 31 Cal.App.3d at page 868, 107 Cal.Rptr. 659, evidence was located in a closed kitchen drawer. In State v. Chapman, supra, 250 A.2d 203, the police made a complete and thorough search of the entire house and basement and found the murder weapon, a whiskey bottle, concealed under paper and trash in a barrel in the garage. In Brown v. State, supra, 475 S.W.2d 938, evidence was found in a laundry hamper.

In view of the different considerations which lead to the adoption of the “automobile exception” and the “murder scene exception,” we are of the opinion that the Chadwick, Minjares, and Dalton cases, which were decided under the “automobile exception,” are not controlling in the present case.

THE COLLATERAL ESTOPPEL ISSUE

At the motion to suppress evidence before the respondent court, defendant contended (1) that Mincey should be given retroactive application, and (2) that the collateral estoppel doctrine barred relitigation of the search and seizure issue after an earlier dismissal of this case under Penal Code section 995. The respondent court granted the motion to suppress evidence on the Mincey ground, but did not rule on the collateral estoppel issue. Consequently, the petition herein pertained only to the respondent court's retroactive application of Mincey. Defendant moved to file a belated return raising the collateral estoppel issue, which motion we denied.

Because the collateral estoppel issue presented no disputed issues of fact, we decided not to send the case back to the respondent court for a ruling, but requested supplemental briefs discussing whether, as a matter of law, the issue of res judicata or collateral estoppel is foreclosed by the case law. These briefs have been filed.

The following facts are not in dispute. Defendant was first held to answer on two counts of murder in case No. A—138686 on September 16, 1977. Upon defendant's motion, pursuant to Penal Code section 995,³ the court on March 15, 1979, suppressed the evidence and dismissed the information filed in the first case. The basis for the suppression of evidence was the retroactive application of Mincey.

The case was then refiled under case No. A—142225 and the defendant was held to answer on two counts of murder on April 25, 1979. Upon the filing of the information, defendant moved to suppress evidence pursuant to Penal Code section 1538.5, based in part upon the theory of collateral estoppel.

Thus, the issue presented is whether a dismissal pursuant to Penal Code section 995 constitutes a conclusive determination of search and seizure issues necessarily decided in such proceeding so as to collaterally estop the People from subsequently presenting the same evidence in the instant case.

The doctrine of res judicata bars parties or persons in privity with them from relitigating a cause of action finally determined by a court of competent jurisdiction. The collateral estoppel aspect of res judicata bars parties or their privies from relitigating in a new proceeding on a different cause of action issues actually determined in a prior proceeding. (In re Russell (1974) 12 Cal.3d 229, 233, 115 Cal.Rptr. 511, 524 P.2d 1295; In re Crow (1971) 4 Cal.3d 613, 622, 94 Cal.Rptr. 254, 483 P.2d 1206.) Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be relitigated between the same parties in any future lawsuit.” (Ashe v. Swenson (1970) 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469.)

It is to be noted that both federal and state cases apply collateral estoppel only if the previous trial resulted in a final judgment. (Ashe v. Swenson, supra, 397 U.S. at p. 443, 90 S.Ct. at 1194; People v. Taylor (1974) 12 Cal.3d 686, 691, 117 Cal.Rptr. 70, 527 P.2d 622.)

The earlier dismissal of the murder charge against defendant on March 15, 1979, was pursuant to a motion under Penal Code section 995, and hence such dismissal was not a bar to a future prosecution for the same offense. (Pen.Code, § 999; People v. Uhlemann (1973) 9 Cal.3d 662, 666, 108 Cal.Rptr. 657, 511 P.2d 609; People v. Van Eyk (1961) 56 Cal.2d 471, 477, 15 Cal.Rptr. 150, 364 P.2d 326.)

The Supreme Court summarized the relationship between the doctrine of res judicata and dismissals following an order setting aside an information or an indictment under Penal Code section 995 as follows:

“In criminal cases, the doctrine of res judicata rests upon the double jeopardy clause of the Fifth Amendment. (Ashe v. Swenson (1970) 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469, 476; In re Crow, supra, 4 Cal.3d at p. 623 [94 Cal.Rptr. 254, 483 P.2d 1206.]) Since jeopardy does not attach at a preliminary hearing, dismissal of a complaint by a magistrate does not bar the People from either refiling the same charges before another magistrate or seeking an indictment based on those charges. (People v. Uhlemann (1973) 9 Cal.3d 662, 666, 668 at fn. 4, 108 Cal.Rptr. 657, 511 P.2d 609.) Even a dismissal in the superior court following an order setting aside an information or an indictment is no bar to a future prosecution for the same offenses. (People v. Uhlemann, supra, 9 Cal.3d at p. 666 [108 Cal.Rptr. 657, 511 P.2d 609]; People v. Van Eyk (1961) 56 Cal.2d 471, 477, 15 Cal.Rptr. 150, 364 P.2d 326.)” (In re Russell, supra, 12 Cal.3d at p. 233, 115 Cal.Rptr. at p. 513, 524 P.2d at p. 1297.)

We conclude therefore that, as a matter of law, the issue of res judicata or collateral estoppel is foreclosed in the present case and that it is unnecessary to return the case to the respondent court for a ruling on this issue.

CONCLUSION

The respondent court is ordered to vacate that part of its order of January 8, 1980, suppressing the evidence seized during the search of defendant's bedroom on August 21, 1977, and the testimony concerning the observation of the knife sharpener, and make a new order denying the motion to suppress.

FOOTNOTES

1.  Cases cited by defendant in which the Supreme Court has applied exclusionary rules prospectively are distinguishable, since the court in each case noted that the rule was not a “new” one. (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449; Gallik v. Superior Court (1971) 5 Cal.3d 855, 97 Cal.Rptr. 693, 489 P.2d 573.)

2.  Alaska (Stevens v. State (1968) 443 P.2d 600); Arizona (State v. Sample (1971), 107 Ariz. 407, 489 P.2d 44); California (People v. Wallace (1973) 31 Cal.App.3d 865, 107 Cal.Rptr. 659); Maine (State v. Chapman (1969) 250 A.2d 203); Texas (Brown v. State (1971), Tex.Cr.App., 475 S.W.2d 938); Vermont (State v. Oakes (1971) 129 Vt. 241, 276 A.2d 18); and Wyoming (Lonquest v. State (1972) 495 P.2d 575).

3.  Penal Code section 995 provides that an information must be set aside by the court in which the defendant is arraigned, upon his motion, if (1) the defendant had not been legally committed by a magistrate before the filing of the information, or (2) the defendant had been committed without reasonable and probable cause.

WONG, Associate Justice (assigned).

FILES, P. J., and KINGSLEY, J., concur.